Federal Evidence Review

The Rules Amendment Page provides an overview on past and pending proposals to amend the Federal Rules of Evidence (FRE).

• For a summary of the legislative history for the FRE from 1973 to the present, see the FRE Legislative History Overview Resource Page.
• In 1975, the Federal Rules of Evidence were enacted, after more than 15 years of drafting and consideration by judicial committees and Congress. For more information concerning the original enactment of the FRE in 1975, see the 1975 FRE Original Enactment Legislative History Page.
• Further information about specific amendments, including links to many legislative materials, is available by accessing the Legislative History Pages below by year. Overtime, more Legislative History Pages and Amendment Summaries will be added.

I. 2011: Proposed Amendment: Restyling The Federal Rules Of Evidence

Restyling The Federal Rules Of Evidence Legislative History Page – Pending December 2011:

Information and links to primary materials on the Advisory Committee on Evidence Rules project to “restyle” the Federal Rules of Evidence. If approved under the current schedule of the Rules Enabling Act, the restyled rules would become effective December 2011.

Blog Posts On Restyling The Federal Rules Of Evidence

Report Of The Judicial Conference Committee On Rules Of Practice And Procedure To The Chief Justice Of The United States And Members Of The Judicial Conference Of The United States

II. 2010: Proposed Amendment: FRE 804(b)(3)

2010 Proposed FRE 804(b)(3) Amendment Legislative History Page – Pending December 2010:

Includes an Amendment Action Timeline for the proposed amendment, with links to many of the primary documents considered with the amendment. If approved under the current schedule of the Rules Enabling Act, the proposed Amendment to FRE 804(b)(3) (Statement Against Interest) would become effective December 2010.

Blog Posts On Proposed FRE 804(b)(3) Amendment

Report of the Advisory Committee on Evidence Rules To the Standing Committee on Rules of Practice and Procedure (summarizing the amendment to FRE 804(b)(3))

III. 2010 / 2009: Pending Congressional Legislation Of Note —

Free Flow of Information Act of 2009 (S. 448)
On February 13, 2009, Senator Arlen Specter introduced "The Free Flow of Information Act of 2009." See S. 448.
Rule 502:
Blog postings on Federal Rule of Evidence 502
Attorney-Client Privilege Protection Act of 2009
Federal Rules Of Evidence – Legislation: Attorney-Client Privilege Protection Act of 2009
Overview
Since 2006, congressional hearings and legislation have focused on how the attorney-client privilege should apply in federal prosecutions involving corporations and business entities. In 2007, the Attorney-Client Privilege Protection Act passed the House of Representatives by a voice vote. See 153 Cong. Rec. H13562-64 (daily ed. Nov. 13, 2007) (passage on voice vote); see also H.R. 3013, 110th Cong., 1st Sess. (2009) (the Attorney-Client Privilege Protection Act of 2007).
In the current Congress, the Attorney Client Privilege Protection Act of 2009 has been reintroduced in the Senate as S. 445, and in the House of Representatives as H.R. 4326. On February 13, 2009, Senator Arlen Specter (R-PA) introduced S. 445, the Attorney-Client Privilege Protection Act of 2009. He noted that while the Department of Justice made improvements to the corporate prosecution guidelines last August, they were insufficient since they could be modified by the department and failed to carry the force of law. In his remarks upon introducing S. 445, Senator Specter noted:
“Like my previous bills, this bill will protect the sanctity of the attorney-client relationship by statutorily prohibiting Federal prosecutors and investigators across the executive branch from requesting waiver of attorney-client privilege and attorney work product protections in corporate investigations. The bill would similarly prohibit the government from conditioning charging decisions or any adverse treatment on an organization's payment of employee legal fees, invocation of the attorney-client privilege, or agreement to a joint defense agreement.”
154 Cong. Rec. S2331-S2332 (Feb. 13, 2009) (remarks of Senator Specter). The legislation has been referred to the Senate Judiciary Committee.
On December 16, 2009, Congressman Robert C. “Bobby” Scott (D-VA) reintroduced the Attorney-Client Privilege Protection Act of 2009 as H.R. 4326, 111th Cong., 1st Sess. (2009), which is identical to the measure he introduced in the prior Congress and which passed the House of Representatives on a voice vote on November 13, 2007. See H.R. 3013, 110th Cong., 1st Sess. (2009) (the Attorney-Client Privilege Protection Act of 2007); H. Rep. No. 445, 110th Cong.,1st Sess. (Nov. 13, 2007); 153 Cong. Rec. H13562-64 (daily ed. Nov. 13, 2007) (passage on voice vote).
In sum, the legislation would bar federal prosecutors and investigators from demanding, requesting or conditioning waiver of the attorney-client privilege and attorney work product protections in corporate investigations. The government also would be barred conditioning prosecution or government decision based on a company’s assertion of the privilege or payment of legal fees for an employee.
For more information concerning the legislation, see Attorney-Client Privilege Protection Act Blog Posts. For more information on federal corporate prosecution guidelines, see the Corporate Prosecution Guidelines Resource Page.
H.R. 4326 Congressional Action / S. 445 Congressional Action / Prior House Action / Prior Senate Action / Other Related Materials
Congressional Timeline
The timeline of recent congressional action is indicated below:
Date	H.R. 4326 Congressional Action
Dec. 16, 2009	Representative Robert C. “Bobby” Scott [D-VA] introduced H.R. 4326, 111th Cong., 1st Sess. (2009), the Attorney Client Privilege Protection Act, which is referred to the House Judiciary Committee; Title: To provide appropriate protection to attorney-client privileged communications and attorney work product. See also Press Release (Rep. Scott Introduces Attorney-Client Privilege Protection Act).
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Date	S. 445 Congressional Action
Feb. 13, 2009	Senator Arlen Specter (R-PA) introduces S. 445, which is referred to the Senate Judiciary Committee. See 154 Cong. Rec. S2331-32 (Feb. 13, 2009) (remarks of Senator Specter upon introduction).
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Prior Congressional Action
Some key materials during prior congressional action are noted below, in the House and Senate:
Date	Prior House Action
Dec. 16, 2009	H.R. 3013 referred to the Senate. See 153 Cong. Rec. S14396 (daily ed. Nov. 14, 2007).
Nov. 13, 2007	House of Representatives passes H.R. 3013 on voice vote. See 153 Cong. Rec. H13562-64 (daily ed. Nov. 13, 2007).
Nov. 13, 2007	House Judiciary Committee issues report on H.R. 3013. See H. Rep. No. 445, 110th Cong.,1st Sess. (Nov. 13, 2007).
Nov. 13, 2007	Letter of Principal Deputy Assistant Attorney General Brian A. Benczkowski to the Honorable Nancy Pelosi, Speaker, U.S. House of Representatives (Nov. 13, 2007)
Aug. 1, 2007	House Judiciary Committee marks-up and reports out H.R. 3013 on voice vote. See House Judiciary Committee Markup Transcript of H.R. 3013 (Aug. 1, 2007) (beginning at p. 106).
July 24, 2007	House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security marks-up and reports H.R. 3013 to the House Judiciary Committee on voice vote.
July 24, 2007	House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security marks-up and reports H.R. 3013 to the House Judiciary Committee on voice vote.
July 20, 2007	H.R. 3013 is referred to the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security.
July 12, 2007	Representative Robert C. “Bobby” Scott (D-VA) introduced H.R. 3013, 110th Cong., 1st Sess. (2009), which is referred to the House Judiciary Committee; Title: To provide appropriate protection to attorney-client privileged communications and attorney work product.
March 8, 2007	The McNulty Memorandum’s Effect on the Right to Counsel in Corporate Investigations, Hearing before the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security, 110th Cong., 1st Sess. (March 8, 2007) (Serial No. 110-24) Witnesses: Barry M. Sabin, Deputy Assistant Attorney General, U.S. Department of Justice, Washington, DC Andrew Weissmann, Partner, Jenner and Block, New York, NY William M. Sullivan, Jr., Partner, Winston and Strawn, LLP, Washington, DC Karen J. Mathis, President, American Bar Association, Chicago, IL Richard T. White, Senior Vice President, Secretary, and General Counsel, The Auto Club Group, Dearborn, MI
March 7, 2007	White Collar Enforcement: Attorney-Client Privilege And Corporate Waivers, Hearing before the House Judiciary Subcommittee On Crime, Terrorism, and Homeland Security, 109th Cong., 2d Sess. (March 7, 2006) (Serial No. 109–112) Witnesses: Robert D. McCallum, Jr., Associate Attorney General, U.S. Department of Justice Honorable Dick Thornburgh, Kirkpatrick & Lockhart Nicholson Graham LLP Thomas J. Donohue, President and CEO, U.S. Chamber of Commerce William M. Sullivan, Jr., Litigation Partner, Winston & Strawn, LLP



Date	Prior Senate Action
June 26, 2008	Senator Arlen Specter (R-PA) introduces a modified version of prior S. 186, as S. 3217, which is referred to the Senate Judiciary Committee. See 153 Cong. Rec. S6294-95 (daily ed. June 26, 2008) (remarks of Sen. Specter upon introduction of S. 3217).
Sept. 18, 2007	Examining Approaches to Corporate Fraud Prosecutions and the Attorney-Client Privilege Under the McNulty Memorandum, Hearing before the Senate Judiciary Committee, 110th Cong., 1st Sess. (Sept. 18, 2007) (Serial No. J–110–55)
Jan. 4, 2007	Senator Arlen Specter (R-PA) introduces the Attorney-Client Privilege Protection Act of 2007, S. 186, 110th Cong., 1st Sess. (2007), which is referred to the Senate Judiciary Committee; Title: A bill to provide appropriate protection to attorney-client privileged communications and attorney work product. See The Thompson Memorandum’s Effect on the Right to Counsel in Corporate Investigations, Hearing before the Senate Judiciary Committee, 109th Cong., 2d Sess. (Sept. 12, 2006) (Serial No. J–109–108) Witnesses: Thomas J. Donohue, President and Chief Executive Officer, U.S. Chamber of Commerce, Washington, DC Karen J. Mathis, President, American Bar Association, Chicago, Illinois Paul J. McNulty, Deputy Attorney General, Department of Justice, Washington, DC Edwin Meese, III, former Attorney General, Ronald Reagan Distinguished Fellow in Public Policy, and Chairman, Center for Legal and Judicial Studies, The Heritage Foundation, Washington, DC Mark B. Sheppard, Partner, Sprague & Sprague, Philadelphia, Pennsylvania Andrew Weissmann, Partner, Jenner & Block, LLP, New York, New York
Date

Other Related Materials

June 20, 2008

Letter of 33 former U.S. Attorneys to Senate Judiciary Committee Chairman Patrick Leahy in support of reform legislation, S. 186, introduced by Senator Specter on January 4, 2007 “The 2006 McNulty Memorandum, which was heralded as a much-needed fix to the 2003 Thompson Memorandum, is inadequate for a number of reasons. First, the Memo provides for oversight of privilege waiver requests by the U.S. Attorney or Main Justice. However, a report written by the Honorable E. Norman Veasey, former Chief Justice of the state of Delaware, found that prosecutors in the field are still requesting or demanding privilege waivers without the supervision required by the McNulty Memorandum. Second, the McNulty Memorandum does not cover other federal agencies, including the SEC, HUD, FCC, EPA, and others, all of which have issued policies requiring waiver in exchange for cooperation. Legislation that covers all federal agents and agencies is thus needed to ensure compliance across the board.”
Attorney-Client Privilege Protection Act Blog Posts
coming soon

IV. 2008: Enacted Amendment: FRE 502

Rule 502:

A. Adopting Federal Rule Of Evidence 502 - The Legislative Process

Providing a summary of the steps by the Advisory Committee on Rules, the Judicial Conference, and Congress to assess this new rule of evidence concerning the waiver of the attorney-client privilege and work product doctrine

Summary Of Federal Rule Of Evidence 502 - Original Proposal

B. Summary of Proposals for the New FRE 502 — Providing an overview of the amendment for the Federal Rules of Evidence as considered by the Advisory Rules Subcommittee on the Evidence Rules and as covered in congressional activities.

Text Of S. 2450, H.R. 3013 And FRE 502 (Original Version)

Providing the text of the current proposal reflected in S. 2450 and H.R. 3013 (Attorney-Client Privilege Protection Act of 2007), as well as earlier proposals by the Advisory Committee for a new Rule 502

Advisory Committee Comment On Federal Rule Of Evidence 502 (Original Version)

Text of the initial version of the Advisory Committee Note to accompany proposed new Federal Rule of Evidence 502.

Timeline - Federal Rule Of Evidence 502

Presents the timeline of actions that ended in the promulgation of Federal Rule of Evidence 502

Rule 804(b)(3):

Text And Draft ACN of Proposed Amendment to FRE 804(b)(3)

Proposed FRE 804(b)(3) Amendment Legislative History Page

V. 2006: Four Amendments Enacted

In December 2006, four amendments became effective concerning FRE 404(a) (Character Evidence Generally), FRE 408 (Compromise and Offers to Compromise), FRE 606(b) (Competency of Juror as Witness: Inquiry Into Validity of Verdict or Indictment), FRE 609 (Impeachment by Evidence of Conviction of Crime).

Summary Of 2006 Amendments
Providing an overview of the four 2006 amendments for the Federal Rules of Evidence
Continuing Series On The 2006 Evidence Amendments
Highlighting recent coverage in the Federal Evidence Review on the 2006 amendments to the FRE
Text of Pending Amendments For 2006
Providing the text of the current rules and the redline version of the four 2006 amendments
2006 Legislative History Page
Provides a timeline for the process of adopting the 2006 Amendments

VI. 2005: Amendments Considered

Background Information On 2005 Adopted Amendments

Providing links to key reports by the judicial policy bodies involved in considering and adopting the pending amendments

2005 Amendments

In 2005, the Supreme Court did not transmit any amendments to Congress for the Federal Rules of Evidence under the Rules Enabling Act.

VII. 2004: Proposed Amendment: FRE 804(b)(3)

2004 Proposed FRE 804(b)(3) Amendment Legislative History Page
Regarding declined amendment to FRE 804(b)(3)

VIII. 2003: Enacted Amendment: FRE 608(b)

2003 FRE 608(b) Amendment Legislative History Page
Report on amendment considered in 2003 for the Federal Rules of Evidence, including Amendment Action Timeline highlighting activity and links to reports on the amendment to FRE 608(b) (Specific Instances of Conduct), which became effective December 2003

IX. 1975: Original FRE Enactment and Amendments


In 1975, three separate statutes affected the FRE: (1) On Jan. 2, 1975, Congress enacted the original FRE; (2) On July 1, 1975, Congress enacted some technical amendments to the FRE; and (3) On Oct. 16, 1975, Congress adopted FRE 801(d)(1)(C):

A. 1975 Original Enactment Of The FRE
In 1975, the Federal Rules of Evidence were enacted, after more than 15 years of drafting and consideration by judicial committees and Congress.

B. 1975 Technical Amendments
After the 1975 enactment of the Federal Rules of Evidence, Congress approved legislation to make technical amendments to FRE 410 (Inadmissibility Of Pleas, Plea Discussions, and Related Statements), FRE 606(b) (Inquiry Into Validity Of Verdict Or Indictment), FRE 803(23) (Judgment Of Previous Conviction), FRE 804(b)(3) (Statement Against Interest), and FRE 1101(e) (Applicability Of Rules).

C. 1975 Amendment Adding FRE 801(d)(1)(C)
Adding Fed. R. Evid. 801(d)(1)(C) (Prior Identification)

X. Other Reports Of Interest

• Case Law Divergence from the Federal Rules of Evidence from the Federal Judicial Center (2000) [PDF]
• Advisory Committee Notes to the Federal Rules of Evidence That May Require Clarification from the Federal Judicial Center (1998) [PDF]

XI. Background On The Rule-Making Process

Information about the rule-making process is not widely known. Some background information concerning this important process is available at the following links:

A summary of the rulemaking process. (On the Rule Making Process And On Submitting Comments to the Advisory Committee (summary from the Administrative Office of the United States Courts))

The Rules Enabling Act which governs the procedures for the adoption of rules in the federal courts.

The Procedures For The Conduct Of Business By The Judicial Conference Committees On Rules Of Practice And Procedure (summary from the Administrative Office of the United States Courts).

XII. History

Federal Evidence Review's Docket of Advisory Committee Actions On Past Amendments
Past committee actions on amendments to the Federal Rules of Evidence
Pending Amendments
The Pending Amendments To The FRE section of the Federal Evidence Review provides a monthly summary of the status of proposed amendments to the Federal Rules of Evidence or of other evidence policies.
See sample Pending Amendments article:
1. Pending Amendment to the Federal Rules of Evidence, 6 Fed. Evid. Rev. 499-500 (May. 2009): Reports on three matters concerning the FRE: (1) a proposed amendment to FRE 804(b)(3) (Declarations Against Penal Interest); (2) Advisory Committee on Evidence Rules progress in preparing drafts to “restyle” the FRE; and (3) Congressional proposals for Federal Reporter Shield Legislation, H.R. 985, the Free Flow of Information Act, which passed the House of Representatives.